A.C. Sen Gupta, J.
1. The State of West Bengal has preferred this revisional application against the order of the learned Sessions Judge allowing an application under Section 498 Criminal Procedure Code for transfer made by the accused in a Sessions case sometime after the trial of that case began before an Additional Sessions Judge.
2. The view of the petitioner is that in view of the provision of Sub-section (2) of Section 409 of the Code of Criminal Procedure, the Sessions Judge can send such a case from one Court of the Additional District Judge to another Additional Court of District Judge before the trial case began in that Court. Section 409 of the Code of Criminal Procedure runs thus:
(1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him.
(2) At any time before the trial of the case or the hearing of the appeal has commenced before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has made over to any Additional Sessions Judge.
3. The learned Advocate for the opposite parties on the either hand argued that in view of the provision of Section 408 of the Code of Criminal Procedure, the Sessions Judge can transfer any case from one criminal Court to another criminal Court at any time irrespective of the fact as to whether the trial of that case has begun or not. The provision of Sub-section (1) of Section 408 runs thus:
(1) Whenever it is made to appear to a Sessions Judge that an order under this subsection is expedient for the ends of justice, he may order that any particular case be transferred from one Criminal Court to another Criminal Court in his sessions division.
4. There appears to be some apparent contradiction between Sub-section (1) of Section 408 and Sub-section (2) of Section 409; but in fact, there is none. It is possible to make a harmonious construction of these two sections:
5. The criminal Court referred to in Section 408 covers only those Courts where cases can be filed. The criminal cases are usually filed in the Court of either the Chief Judicial Magistrate or the Sub-Divisional Judicial Magistrate, Section 408 refers to those cases and has nothing to do with the cases that might be transferred to the Chief Judicial magistrate or to the Assistant and Additional Sessions Judges and Section 409, to the cases which have been transferred to the Additional Sessions Judges or Assistant Sessions Judges or Chief Magistrate. Section 409 relates to those transferred cases and Section 408 relates to the cases originally filed in the criminal Courts. That is why, we noted that there is no apparent incongruity between the provisions of these two sections.
6. Now, the Sessions Judge has exercised his power under Section 408 in respect of the case transferred from the Court of Sessions Judge to the Court of the Additional Sessions Judge who already began the trial thereof. In view of the provision of Sub-section (2) of Section 409 which has already been quoted by us, he has no such power when the trial already commenced
7. Before disposing of this case, we should observe that the accused opposite parties should be given the copy of the F.S.L. before they are asked to cross- examine the particular prosecution witnesses deposing on matters concerned by the F.S.L. report.
8. In the circumstances, noted above, the revisional application is allowed. The order of the learned Sessions Judge is set aside and the Rule is made absolute.
J.N. Hore, J.
9. I agree.